Abstract

The late Justice Antonin Scalia held a minimalist view of the religion clauses: the Free Exercise Clause does not protect against neutral laws of general applicability, and the Establishment Clause prohibits neither longstanding traditional practices nor legislative acts with a plausible secular purpose. In both free exercise and establishment cases, Scalia resisted judicial second-guessing of legislative judgments unless he saw an explicit singling out of religious practice. Yet Scalia had an uneven influence on religion clause jurisprudence. When it came to the Free Exercise Clause, he played a pivotal role in shaping a doctrinal framework that has arguably created more tensions than it has resolved. In contrast, when it came to the Establishment Clause, he failed to influence his colleagues to alter a doctrinal framework that arguably remains less coherent than it would have been under his proposed alternative. The net result is the worst of both worlds: a Court that followed Scalia into a murky free exercise experiment and ignored his pleas to clarify its understanding of establishment. This Article explores Justice Scalia’s religion clause minimalism in six opinions. It then considers three difficulties raised by his approach: one theoretical, one doctrinal, and one normative. The theoretical difficulty is that Scalia’s minimalism made him less likely to help religious minorities that he believed worth protecting. The doctrinal difficulty is that his minimalism makes it difficult to justify the Court’s protections for religious institutions. The normative difficulty — for those who favor strong religious liberty protections — is that his minimalism makes it hard to require that discretionary public funding include religious beneficiaries.

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